EXHIBIT 10.3B
EMPLOYMENT AGREEMENT
--------------------
THIS AGREEMENT entered into this 1st day of January, 2001 ("Effective
Date"), by and between Heritage Bank (the "Bank") and Xxxxx X. Xxxxxx (the
"Employee").
WHEREAS, the Employee has heretofore been employed by the Bank as Chief
Executive Officer and is experienced in all phases of the business of the Bank;
and
WHEREAS, the parties desire by this writing to set forth the continuing
employment relationship of the Bank and the Employee.
NOW, THEREFORE, it is AGREED as follows:
1. Employment. The Employee is employed in the capacity as an Chief
----------
Executive Officer of the Bank. The Employee shall render such administrative
and management services to the Bank and CCF Holding Company ("Parent") as are
currently rendered and as are customarily performed by persons situated in a
similar executive capacity. The Employee shall promote, by entertainment or
otherwise, as and to the extent permitted by law, the business of the Bank and
Parent. The Employee's other duties shall be such as the Board of Directors for
the Bank (the "Board of Directors" or "Board") may from time to time reasonably
direct, including normal duties as an officer of the Bank.
2. Base Compensation. As of the Effective Date, the Bank agrees to pay
-----------------
the Employee during the term of this Agreement a salary at the rate of
$131,250 per annum, payable in cash not less frequently than semi-monthly;
provided, that the rate of such base salary and total compensation shall be
reviewed by the Board of Directors not less often than annually, and Employee
shall be entitled to receive annually an increase in base salary at such
percentage or in such an amount as the Board of Directors in its sole discretion
may decide at such time upon a determination and resolution of the Board of
Directors that the performance of the Employee has met the requirements and
standards of the Board, and that such base salary shall be increased.
3. Discretionary Bonus. The Employee shall be entitled to participate in
-------------------
an equitable manner with all other senior management employees of the Bank in
discretionary bonuses that may be authorized and declared by the Board of
Directors to its senior management employees from time to time. No other
compensation provided for in this Agreement shall be deemed a substitute for the
Employee's right to participate in such discretionary bonuses when and as
declared by the Board of Directors.
4. (a) Participation in Retirement and Medical Plans. The Employee shall
---------------------------------------------
be entitled to participate in any plan of the Bank relating to pension, profit-
sharing, or other retirement benefits and medical coverage or reimbursement
plans that the Bank may adopt for the benefit of its employees.
(b) Employee Benefits; Expenses. The Employee shall be eligible to
---------------------------
participate in any fringe benefits which may be or may become applicable to the
Bank's senior management employees, including by example, participation in any
stock option or incentive plans adopted by the Board of Directors of Bank or
Parent, club memberships, a reasonable expense account, and any other benefits
which are commensurate with the responsibilities and function to be performed by
the Employee under this Agreement. The Bank shall reimburse Employee for all
reasonable out-of-pocket expenses which Employee shall incur in connection with
his service for the Bank.
5. Term. The term of employment of Employee under this Agreement shall
----
be for the period commencing on the Effective Date and ending three years
thereafter. Additionally, not later than on each annual anniversary date from
the Effective Date, the term of employment under this Agreement shall be
extended for up to an additional one year period beyond the then effective
expiration date upon a determination and resolution of the Board of Directors
that the performance of the Employee has met the requirements and standards of
the Board, and that the term of such Agreement shall be extended.
6. Loyalty; Noncompetition.
-----------------------
(a) The Employee shall devote his full time and attention to the
performance of his employment under this Agreement. During the term of
Employee's employment under this Agreement, the Employee shall not engage in any
business or activity contrary to the business affairs or interests of the
Association or Parent.
(b) Nothing contained in this Section 6 shall be deemed to prevent or
limit the right of Employee to invest in the capital stock or other securities
of any business dissimilar from that of the Bank or Parent, or solely as a
passive or minority investor, in any business.
7. Standards. The Employee shall perform his duties under this Agreement
---------
in accordance with such reasonable standards expected of employees with
comparable positions in comparable organizations and as may be established from
time to time by the Board of Directors.
8. Vacation and Sick Leave. At such reasonable times as the Board of
-----------------------
Directors shall in its discretion permit, the Employee shall be entitled to
absent himself voluntarily from the performance of his employment under this
Agreement as follows:
(a) The Employee shall be entitled to annual vacation leave in accordance
with the policies as are periodically established by the Board of Directors for
senior management employees of the Bank.
(b) The Employee shall not be entitled to receive any additional
compensation from the Bank on account of his failure to take vacation leave and
Employee shall not be entitled to accumulate unused vacation from one fiscal
year to the next, except in either case to the extent authorized by the Board of
Directors for senior management employees of the Bank.
(c) In addition to the aforesaid paid vacations, the Employee shall be
entitled without loss of pay, to absent himself voluntarily from the performance
of his employment with the Bank for such additional periods of time and for such
valid and legitimate reasons as the Board of Directors in its discretion may
determine. Further, the Board of Directors shall be entitled to grant to the
Employee a leave or leaves of absence with or without pay at such time or times
and upon such terms and conditions as the Board of Directors in its discretion
may determine.
(d) In addition, the Employee shall be entitled to an annual sick leave
benefit as established by the Board of Directors for senior management employees
of the Bank. In the event that any sick leave benefit shall not have been used
during any year, such leave shall accrue to subsequent years only to the extent
authorized by the Board of Directors for employees of the Bank.
9. Termination and Termination Pay.
-------------------------------
The Employee's employment under this Agreement shall be terminated upon any
of the following occurrences:
(a) The death of the Employee during the term of this Agreement, in which
event the Employee's estate shall be entitled to receive the compensation due
the Employee through the last day of the calendar month in which Employee's
death shall have occurred.
(b) The Board of Directors may terminate the Employee's employment at any
time, but any termination by the Board of Directors other than termination for
Just Cause, shall not prejudice the Employee's right to compensation or other
benefits under the Agreement. The Employee shall have no right to receive
compensation or other benefits for any period after termination for Just Cause.
Termination for "Just Cause" shall include termination because of the Employee's
personal dishonesty, incompetence, willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure to perform stated duties, willful
violation of any law, rule or regulation (other than traffic violations or
similar offenses) or final cease-and-desist order, or material breach of any
provision of the Agreement.
(c) Except as provided pursuant to Section 12 herein, in the event
Employee's employment under this Agreement is terminated by the Board of
Directors without Just Cause, the Bank shall be obligated to continue to pay the
Employee the salary provided pursuant to Section 2 herein, up to the date of
termination of the term (including any renewal term) of this Agreement and the
cost of Employee obtaining all health, life, disability, and other benefits
which the Employee would be eligible to participate in through such date based
upon the benefit levels substantially equal to those being provided Employee at
the date of termination of employment.
(d) If the Employee is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Sections 8(e) (4) or 8 (g) (1) of the Federal Deposit Insurance Act ("FDIA") (12
U.S.C. 1818 (e) (4) and (g) (1) ), all obligations of the Bank
under this Agreement shall terminate, as of the effective date of the order, but
the vested rights of the parties shall not be affected.
(e) If the Bank is in default (as defined in Section 3 (x) (1) of FDIA)
all obligations under this Agreement shall terminate as of the date of default,
but this paragraph shall not affect any vested rights of the contracting
parties.
(f) All obligations under this Agreement shall be terminated, except to
the extent determined that continuation of this Agreement is necessary for the
continued operation of the Bank: (i) by the Georgia Department of Banking and
Finance, or their designee, at the time that the Federal Deposit Insurance
Corporation ("FDIC") enters into an agreement to provide assistance to or on
behalf of the Bank under the authority contained in Section 13 (c) of FDIA; or
(ii) by the Director of the FDIC, or his or her designee, at the time that the
Director of the FDIC, or his or her designee approves a supervisory merger to
resolve problems related to operation of the Bank or when the Bank is determined
by the Director of the FDIC to be in an unsafe or unsound condition. Any rights
of the parties that have already vested, however, shall not be affected by such
action.
(g) The voluntary termination by the Employee during the term of this
Agreement with the delivery of no less than 60 days written notice to the Board
of Directors, other than pursuant to Section 12 (b), in which case the Employee
shall be entitled to receive only the compensation, vested rights, and all
employee benefits up to the date of such termination.
(h) Notwithstanding anything herein to the contrary, any payments made to
the Employee pursuant to the Agreement, or otherwise, shall be subject to and
conditioned upon compliance with 12 USC 1828 (k) and any regulations promulgated
thereunder.
10. Suspension of Employment. If the Employee is suspended and/or
------------------------
temporarily prohibited from participating in the conduct of the Bank's affairs
by a notice served under Section 8 (e) (3) or (g) (1) of the FDIA (12 U.S.C.
1818 (e) (3) and (g) (1) ), the Bank's obligations under the Agreement shall be
suspended as of the date of service, unless stayed by appropriate proceedings.
If the charges in the notice are dismissed, the Bank may in its discretion (i)
pay the Employee all or part of the compensation withheld while its contract
obligations were suspended and (ii) reinstate any of its obligations which were
suspended.
11. Disability. If the Employee shall become disabled or incapacitated to
----------
the extent that he is unable to perform his duties hereunder, by reason of
medically determined by a doctor engaged by the Board of Directors, Employee
shall nevertheless continue to receive the compensation and benefits provided
under the terms of this Agreement as follows: 100% of such compensation and
benefits for a period of 12 months, but not exceeding the remaining term of the
Agreement, and 65% thereafter for the remainder of the term of the Agreement.
Such benefits noted herein shall be reduced by any benefits otherwise provided
to the Employee during such period under the provisions of disability insurance
coverage in effect for Bank employees.. Thereafter, Employee shall be eligible
to receive benefits provided by the Association under the provisions of
disability insurance coverage in effect for Bank employees.
Upon returning to active full-time employment, the Employee's full compensation
as set forth in this Agreement shall be reinstated as of the date of
commencement of such activities. In the event that the Employee returns to
active employment on other than a full-time basis, then his compensation (as set
forth in Paragraph 2 of this Agreement) shall be reduced in proportion to the
time spent in said employment, or as shall otherwise be agreed to by the
parties.
12. Change in Control.
-----------------
(a) Notwithstanding any provision herein to the contrary, in the event of
the involuntary termination of Employee's employment under this Agreement,
absent Just Cause, in connection with, or within twelve (12) months after, any
change in control of the Bank or Parent, Employee shall be paid an amount equal
to the product of 2.99 times the Employee's "base amount" as defined in Section
280G (b) (3) of the Internal Revenue code of 1986, as amended (the "Code") and
regulations promulgated thereunder. Said sum shall be paid, at the option of
Employee, either in one (1) lump sum within thirty (30) days of such termination
discounted to the present value of such payment using as the discount rate the
"prime rate" as published in the Wall Street Journal Eastern Edition as of the
date of such payment, or in periodic payments over the next 36 months or the
remaining term of this Agreement whichever is less, as if Employee's employment
had not been terminated, and such payments shall be in lieu of any other future
payments which the Employee would be otherwise entitled to receive under Section
9 of this Agreement. Notwithstanding the forgoing, all sums payable hereunder
shall be reduced in such manner and to such extent so that no such payments made
hereunder when aggregated with all other payments to be made to the Employee by
the Bank or the Parent shall be deemed an "excess parachute payment" in
accordance with Section 280G of the Code and be subject to the excise tax
provided at Section 4999 (a) of the Code. The term "control" shall refer to the
ownership, holding or power to vote more than 25% of the Parent's or Bank's
voting stock, the control of the election of a majority of the Parent's or
Bank's directors, or the exercise of a controlling influence over the management
or policies of the Parent or Bank by any person or by persons acting as a group
within the meaning of Section 13 (d) of the Securities Exchange Act of 1934. The
term "person" means an individual other than the Employee, or a corporation,
partnership, trust, association, joint venture, pool, syndicate, sole
proprietorship, unincorporated organization or any other form of entity not
specifically listed herein.
(b) Notwithstanding any other provision of this Agreement to the contrary,
Employee may voluntarily terminate his employment under this Agreement within
twelve (12) months following a change in control of the Bank or Parent, and
Employee shall thereupon be entitled to receive the payment described in Section
12 (a) of this Agreement.
(c) In the event any dispute shall arise between the Employee and the Bank
as to the terms or interpretation of this Agreement, including this Section 12,
whether instituted by formal legal proceedings or otherwise, including any
action taken by Employee to enforce the terms of this Section 12 or in defending
against any action taken by the Bank or Parent, the Bank or Parent shall
reimburse Employee for all costs and expenses, including reasonable attorneys'
fees, arising from such dispute, proceedings or actions following issuance of a
legal judgment by a court of competent jurisdiction finding in favor of the
Employee or the settlement of the dispute
by the parties. Such settlement to be approved by the Board of the Bank or the
Parent may include a provision for the reimbursement by the Bank or Parent to
the Employee for all costs and expenses, including reasonable attorneys' fees,
arising from such dispute, proceedings or actions, or the Board of the Bank or
the Parent shall authorize such reimbursement of such costs and expenses by
separate action upon a written action and determination of the Board that
payment of such costs and expenses is not detrimental to the Bank or the Parent.
Such reimbursement shall be paid within ten (10) days of Employee furnishing to
the Bank or Parent evidence, which may be in the form, among other things, of a
canceled check or receipt, of any costs or expenses incurred by Employee.
13. Successors and Assigns.
----------------------
(a) This agreement shall inure to the benefit of and be binding upon any
corporate or other successor of the Bank or Parent which shall acquire, directly
or indirectly, by merger, consolidation, purchase or otherwise, all or
substantially all of the assets or stock of the Bank or Parent.
(b) Since the Bank is contracting for the unique and personal skills of
the Employee, the Employee shall be precluded from assigning or delegating his
rights or duties hereunder without first obtaining the written consent of the
Bank.
14. Amendments. No amendments or additions to this Agreement shall be
----------
binding upon the parties hereto unless made in writing and signed by both
parties, except as herein otherwise specifically provided.
15. Applicable Law. This agreement shall be governed in all respects
--------------
whether as to validity, construction, capacity, performance or otherwise, by the
laws of the State of Georgia, the extent that Federal law shall be deemed to
apply.
16. Severability. The provisions of this Agreement shall be deemed
------------
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
17. Entire Agreement. This Agreement together with any understanding or
----------------
modifications thereof as agreed to in writing by the parties, shall constitute
the entire agreement between the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
first hereinabove written.
Heritage Bank
ATTEST: By: _________________________
___________________
Secretary
WITNESS:
___________________ _______________________________
Xxxxx X. Xxxxxx, Employee
